Financial Account Consent Agreement CMARK International, Inc., a South Carolina corporation Columbia, SC 29223
EXHIBIT
10.86
CMARK
International, Inc., a South Carolina corporation
0000 Xxx
Xxxxx Xxxx, Xxxxx 0
Xxxxxxxx,
XX 00000
December
18, 2007
Community
Resource Bank
Blythewood
Branch
000
Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX
00000
Ladies
and Gentlemen:
We refer
to account numbers 00000000 and 52200973 (the "Financial
Accounts") maintained with Community Resource Bank (the
"Financial Institution") by CMARK International, Inc., a
South Carolina corporation (the "Company") and into which certain moneys,
instruments, securities and other property are or may be deposited from time to
time. The Company has granted to Sterling Management, Inc., a
Minnesota corporation, ("Secured Party") under the Security Agreement, dated as
of August 25, 2005, among the Company and Secured Party (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
"Agreement"), a security interest in the Financial Account Collateral (as
defined in the Agreement), including, without limitation, all moneys,
instruments, securities and other property deposited in the Financial Accounts
and all certificates or other instruments, if any, representing or evidencing
the Financial Accounts. It is a condition to the continued
maintenance of the Financial Accounts with the Financial Institution that the
Financial Institution agrees to this letter agreement.
The
parties hereto agree as follows:
1. The
Financial Institution hereby confirms that the Company has established with it
the Financial Accounts. The Financial Institution agrees that from
and after the date hereof the Financial Accounts shall be under the exclusive
dominion and control of Secured Party and all moneys, instruments, securities
and other property of the Company received in connection therewith, whether or
not deposited in the Financial Accounts, shall be held solely for the benefit of
Secured Party. Except as otherwise provided herein, the Financial
Accounts shall be subject to written instructions only from Secured
Party.
2. The
Financial Institution agrees to do the following:
(a) follow
its usual operating procedures for the handling of any remittance received in
the Financial Accounts that contains restrictive endorsements, irregularities,
such as a variance between the written and numerical amounts, undated or
postdated items, missing signature or incorrect payee;
(b) endorse
and process all eligible checks and other remittance items not covered by
subparagraph (a) above and deposit such checks and other remittance items in the
Financial Accounts; and
(c) maintain
a record of all checks and other remittance items received in the Financial
Accounts and, in addition to providing the Company with photostats, vouchers and
enclosures of checks and other remittance items received on a daily basis, as
well as a monthly statement, furnish to Secured Party, free of any service
charge payable by Secured Party, its regular bank statement with respect to the
Financial Accounts, with the words "Sterling Management, Inc., as Secured Party,
Re: CMARK International, Inc., a South Carolina corporation" included thereon so
that there is no confusion as to ownership of the Financial Accounts and so that
Secured Party is able to properly identify the Financial Accounts.
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EXHIBIT
10.86 - continued
3. Secured
Party hereby instructs the Financial Institution to follow the instructions of
the Company with respect to the disposition of any and all moneys, instruments,
securities and other property deposited in the Financial Accounts as directed by
the Company unless and until the Financial Institution has received written
instructions to the contrary from Secured Party, in which case the Financial
Institution agrees to follow such instructions from Secured Party.
The
Financial Institution hereby agrees that Secured Party will be entitled to all
rights and remedies to which a person in control of "financial assets" (within
the meaning of Section 8-102(a)(9) of the Uniform Commercial Code as in effect
in the State of South Carolina (the "UCC")) is entitled pursuant to Part 5 of
Article 8 of the UCC and Article 9 of the UCC, and, subject to the provisions of
the immediately preceding paragraph, the Financial Institution agrees to follow
the instructions of Secured Party with respect to the disposition of any and all
moneys, instruments, securities, and other property deposited in the Financial
Accounts.
Without
limiting the foregoing, if at any time the Financial Institution shall receive
an "entitlement order" (within the meaning of Section 8-102(a)(8) of the
UCC) issued by Secured Party and relating to the Financial Accounts, the
Financial Institution shall comply with such entitlement order without further
consent of the Company or any other person. The Financial Institution
hereby agrees that it shall be a "securities intermediary" within the meaning of
Section 8-102(a)(14) of the UCC and that the Financial Accounts shall be
maintained as "securities accounts" (as such term is defined in
Section 8-501(a) of the UCC) to the extent that any "investment property"
(as defined in Section 9-102(a)(49) of the UCC) is maintained in or in
respect of the Financial Accounts and that each item of investment property
credited to a Financial Account shall be treated as a financial
asset. The Financial Institution further agrees that all securities
or other investment property underlying any financial assets credited to any
Financial Account shall be registered in the name of the Financial Institution,
endorsed to it or in blank or credited to another securities account maintained
in its name.
4. Except
for the claims and interest of Secured Party and the Company in the Financial
Accounts, the Financial Institution acknowledges that it does not know of any
claim to, or interest in, the Financial Accounts or in any financial asset
credited thereto. If any person asserts any lien, encumbrance or
adverse claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Financial Accounts or in any financial
asset carried therein, the Financial Institution will promptly notify Secured
Party and the Company thereof.
5. Except
with respect to its ordinary account fees and any actual losses incurred by it
in respect of dishonored items credited to the Financial Accounts in accordance
with its usual operating procedures, the Financial Institution waives and agrees
not to assert, claim or endeavor to exercise, and by executing this letter
agreement bars and estops itself from asserting, claiming or exercising, and the
Financial Institution acknowledges that it has not heretofore received a notice
from any other party asserting, claiming or exercising, any right of setoff,
banker's lien or other purported form of claim with respect to the Financial
Accounts and funds from time to time therein. The Financial
Institution shall have no rights in the Financial Accounts or the funds
therein. To the extent that it may ever have any such rights, the
Financial Institution hereby expressly subordinates all such rights to all
rights of Secured Party.
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EXHIBIT
10.86 - continued
6. The
Financial Institution shall not be liable for any action taken or omitted by it
with respect to the Financial Accounts on the instructions of Secured Party, and
the Financial Institution shall not have any duty or responsibility to ascertain
whether any such instructions are consistent with the Agreement or the other
credit documents relating thereto. The Financial Institution may rely
on any certificate, statement, request, agreement or other instrument it
believes in good faith to be genuine and to have been signed or presented by or
on behalf of Secured Party. In maintaining the Financial Accounts
hereunder, the Financial Institution may consult with counsel and shall be fully
protected with respect to any action taken or omitted by it in good faith on
advice of counsel and shall have no liability hereunder except for its bad
faith, willful misconduct or gross negligence with respect to its obligations
hereunder.
7. The
Company represents that the Financial Accounts comprise all of the deposit
accounts of the Company held with any financial institution.
8. The
Company agrees to indemnify the Financial Institution against and save the
Financial Institution harmless from any and all claims, liabilities, reasonable
costs and expenses, including reasonable out-of-pocket fees and expenses of
counsel, for anything done or omitted by it in good faith in connection with
this letter agreement, including reasonable costs and expenses of defending
itself against any claim or liability; provided, that the
Financial Institution shall not have the right to be indemnified hereunder for
its gross negligence or willful misconduct.
9. The
Financial Institution may terminate this letter agreement only upon thirty days'
prior written notice to that effect to the Company and Secured Party and by
canceling the Financial Accounts maintained with it and transferring all funds,
if any, in such Financial Accounts to Secured Party. After any such
termination, the Financial Institution shall nonetheless remain obligated
promptly to transfer to Secured Party at its address anything from time to time
received in respect of the Financial Accounts.
10. This
letter agreement shall be binding upon the parties hereto and their respective
successors and assigns. This letter agreement may be executed in
counterparts, each of which will be deemed an original and all of which taken
together shall constitute one and the same instrument.
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EXHIBIT
10.86 - continued
THE
"SECURITIES INTERMEDIARY'S JURISDICTION" WITHIN THE MEANING OF SECTION 8-110(E)
OF THE UCC IS AND SHALL CONTINUE TO BE THE STATE OF SOUTH
CAROLINA. THIS LETTER AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF SOUTH CAROLINA, EXCLUDING (TO THE GREATEST EXTENT PERMITTED BY LAW) ANY
RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF SOUTH CAROLINA.
| Very truly yours, | ||||
| COMPANY: | ||||
| CMARK International, Inc., | ||||
| a South Carolina corporation | ||||
|
Date
|
By:
|
/s/ Xxxxxxx X. Xxxxx, Xx. | ||
| Name: | Xxxxxxx X. Xxxxx, Xx. | |||
| Title: | President | |||
| SECURED PARTY: | ||||
| Sterling Management, Inc., | ||||
| a Minnesota corporation | ||||
|
Date
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | ||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | President | |||
Acknowledged
and agreed to
as of the
date first above written:
Community
Resource Bank
| By: | /s/ Will Xxxxxx |
|
||||
|
Name:
|
Will
Xxxxxx
|
|
||||
| Title: |
Regional
President
|
|
||||
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